An Overview of the Divorce Process

This article is an overview of the divorce process in contested divorces, that is, where the parties have not already entered into an agreement and are not filing a joint petition for divorce. Keep in mind that each case and judge is unique and so a particular case may or may not follow this general roadmap. This article is not intended to cover every possible scenario which may arise during the course of a divorce.

The first step is filing the complaint for divorce. Almost all contested complaints for divorce today are filed under G.L. c. 208, § 1B for irretrievable breakdown of the marriage. Along with the complaint for divorce, the plaintiff must file a certified copy of the parties’ marriage certificate, an affidavit disclosing care and custody if minor children are involved, and a statistical information form. When the complaint for divorce is filed with the court clerk’s office, an automatic restraining order issues which, generally speaking, prohibits the parties from transferring property, incurring debt that would impact the other party, changing beneficiaries, and changing insurance coverage. This automatic restraining order is effective against the plaintiff immediately upon filing the complaint for divorce and becomes effective against the defendant once he or she is served with the complaint for divorce. The automatic restraining order is taken very seriously. If a party fails to comply with the automatic restraining order, she or he may be deemed to be in contempt of court.

The summons, copies of the documents filed with the court (complaint, marriage certificate, affidavit disclosing care and custody, and statistical information form), and any documents issued by the court (such as a Track Assignment Notice[1]) must be served upon the defendant in hand by either a constable or sheriff. If the plaintiff does not know the defendant’s whereabouts, there are alternative ways of accomplishing service, which are beyond the scope of this article. The summons and other documents set forth above must be served within ninety days of the summons being issued, unless a motion for temporary orders has been filed (see below), in which case the summons and other documents set forth above must be served with a copy of the motion for temporary orders at least seven days prior to the hearing on the motion for temporary orders, not including the day of hearing. Once the defendant is served, the constable or sheriff will provide a “return of service” to the plaintiff indicating when, where, and how the defendant was served. The return of service must be attached to the original summons and filed with the court.

Depending upon the facts of the case, it may be appropriate to file a motion for temporary orders. In a motion for temporary orders, a party may, as the facts of the case dictate, seek orders with respect to custody, visitation, child support, alimony, medical insurance, residence in the former marital home, responsibility for payment of expenses, or other issues that need to be determined on a relatively quick basis. A party files the motion for temporary orders with the court and the motion is scheduled for hearing depending upon the procedure of the particular county in which the case is pending. A copy of the motion must be served upon the other party at least seven days prior to the hearing, not including the day of the hearing. It is not unusual for the parties to enter into a stipulation (or agreement) with respect to the issues raised in the motion, either before the court date or on the day of the hearing. These orders are only temporary and can be modified either by later court order or stipulation of the parties.

If the parties have minor children, the parties are required to attend an approved Parent Education Program, unless attendance is waived by the court.[2] The parties are required to register for the class within thirty days of service of the complaint for divorce. The parties must complete and file an affidavit confirming registration for the program. The parties must complete the program prior to the pretrial conference. Upon the completion of the program, the program will issue a certificate of attendance to each party, who then must file the certificate with the court within thirty days.

After the complaint for divorce is filed, the discovery process begins. The Supplemental Rules of the Probate Court require that each side provide the other with what is called “mandatory discovery.”[3] The documents that are required to be exchanged as part of mandatory discovery include tax returns for the past three years, each party’s four most recent paystubs, health insurance coverage documentation, bank and investment account statements for the past three years, and loan or mortgage applications and financial statements prepared during the last three years. The rule requires that the documents be exchanged within forty-five days of service of the summons on the defendant. The parties can also request further discovery from each other through the use of interrogatories, requests for production of documents, requests for admission of facts, and depositions.

A case management conference may be scheduled by the court. The purpose of the case management conference is to ensure that the case is progressing, to set discovery deadlines, determine whether the case may settle, and to schedule a pre-trial conference.[4]

After at least six months have passed from the date of the filing of the complaint for divorce, there will be a pre-trial conference scheduled by the court. Prior to the pre-trial conference, the parties are required to meet at an in-person meeting (typically referred to as a “four-way conference” due to the attendance of the two parties and the two attorneys) to discuss potential settlement terms. If the parties are able to settle, an agreement will be prepared outlining all of the terms of settlement. Keep in mind that a settlement does not necessarily have to be all-or-nothing – parties can agree to certain terms, reserving other issues for trial. If the parties are unable to settle all of the issues, the case proceeds to the pre-trial conference.

For the pre-trial conference, both parties prepare a pre-trial conference memorandum. The details of the content requirements for the pre-trial conference memorandum are included in the pre-trial notice and order that is sent to each party by the court, but generally requires the parties to state the facts that are and are not agreed to, contested legal issues, witnesses, exhibits, agreement or opinion of value for any real or personal property that is in issue, an estimate of the time required for trial, and a written offer of proof for the factors regarding property division and alimony. Prior to or at the pre-trial conference, the judge will read each party’s pre-trial memorandum and may offer suggestions on how the judge feels the case would settle given the facts as she or he knows them at that time. The judge may schedule a further status conference, for instance to give the parties additional time to discuss settlement proposals.

As mentioned above, if the parties are able to settle all of the issues, a separation agreement will be prepared outlining all of the terms of settlement. The agreement, along with the parties’ financial statements, is presented to the court for its approval. The court will review the agreement and ask each party whether he or she has read the agreement, understands it, has any questions, and believes the agreement is fair and reasonable. Once the judge finds that the marriage is irretrievably broken and that the agreement is fair and reasonable, the judge will approve the agreement and incorporate it into a judgment.

If the case still does not settle, a trial will be necessary. At trial, each party has the opportunity to present evidence in support of the outcome they are seeking. After the trial concludes, the judge may or may not ask each party to submit in writing their proposed findings of fact, proposed judgment, and rationale in support of the proposed judgment.

After the judge approves the separation agreement or issues a memorandum of decision following trial, a judgment of divorce nisi[5] will issue. The issuance of a judgment of divorce nisi means that for all intents and purposes the parties are divorced as of that date, but the only thing that they cannot do is remarry. The judgment will become final by operation of law ninety days later, meaning that there is no need for the parties to return to court for the judgment to become final.

The divorce process may, and probably for most people will, seem overwhelming. However, when taken step by step, and with the thoughtful guidance of an attorney, it can be a lot more manageable. Contact us online or call (978) 256-1456 to schedule an appointment with a divorce attorney to discuss your specific family law needs. We can give you an assessment about your family legal issue.

[1] The Track Assignment Notice provides the time standard goal for completion of a case. For a contested divorce, the time standard goal is 14 months, but unless the parties come to an agreement, they should anticipate a longer duration. Probate and Family Court Standing Order 1-06.

[2] Probate and Family Court Standing Order 2-16

[3] Supplemental Probate and Family Court Rule 410: Mandatory Self Disclosure

[4] Probate and Family Court Standing Order 1-06

[5] Pronounced “nigh-sigh”